In America, the Law is Not King

Book Review: With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the PowerfulGlenn Greenwald304 pages, Metropolitan Books, 2011

By Jayel Aheram

Just a week before the year ended, 26-year old single mother Patricia Spottedcrow spent the holidays in prison. It was her first Christmas away from her children — now ages 2, 4, 5, and 10 — after receiving a 12-year sentence for the first-time offense of attempting to sell $31 worth of marijuana to undercover police officers.

If Spottedcrow had been a former president, an influential administration official, a Hollywood celebrity, or a hedge fund manager for wealthy investors, the single mother might have experienced leniency and compassion from the criminal justice system. In fact, she might not have even seen the inside of a courthouse for worse crimes. Instead, like most powerless victims of this country, the rule of law will be stringently enforced with all the impartiality and dispassion the criminal justice system could muster.

While the heavy hand of the law is used to incarcerate an increasing number of the poor and sentenced for increasingly long periods for even the most petty of crimes, this same rule of law is repeatedly abrogated in the name of protecting the very powerful of this country: the political and financial elites. That this two-tiered justice system exists — one tier to protect powerful from any culpability in high crimes committed and the other to severely punish the powerless for the most minor of offenses — represents the deposition of law as king in America, according to Glenn Greenwald in his latest book With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful.

Greenwald convincingly illustrates the existence of a two-tiered justice system in America and recounts the systematic efforts to dismantle the rule of law as it applies to powerful beginning with Gerald Ford’s presidential pardon of Richard Nixon to the current Obama administration’s self-serving refusal and aggressive prevention of all efforts to investigate the Bush torture regime.

In his introduction, Greenwald lists the crimes he lays upon the elites: the “global torture regime” of the Bush administration, the “plundering by Wall Street” that led to the still-ongoing economic recession, the “obstruction of justice” by administration officials, and the widespread fraud that characterized the home foreclosures by the largest banks. In every instance, Greenwald claimed that “the perpetrators were shielded from any legal consequence.” This is in contrast to the aforementioned Spottedcrow or other non-violent offenders like her, whose negligible “crimes” are so inconsequential compared to the criminal destruction by the financial elites of the wealth of this nation’s middle class and the prolonged suffering they continue to endure.

According to Greenwald, this decades-long undermining of the rule of law not only denies justice for those most aggrieved — in this case, the American people who have been spied on, plundered, tortured, and under the current Obama administration even assassinated — but also perpetuates the chronic lawlessness from the very institutions Americans have entrusted to protect them and provide ever more incentives for the elites to commit even greater injustice against the American people.

Greenwald rose to national prominence as a blogger in 2005 when the first controversies regarding the National Security Agency’s illegal domestic wiretapping were disclosed by the New York Times. Unsurprisingly, the most compelling chapter of his book is devoted to this saga of flagrant violations of the law by the Bush administration and the ensuing scramble by officials to secure immunity for the telecoms who cooperated with the administration in law-breaking and shield them from any legal consequence.

That the telecoms were acting under the orders of the president is irrelevant according to Greenwald, when the law explicitly forbids telecoms from “intentionally engaging in electronic surveillance unless authorized by a court.” Greenwald argues very forcefully that the administration’s demand for retroactive immunity for the telecoms “makes complete mockery of the rule of law,” contending:

[T]he United States is not supposed to be a country where private actors are permitted to commit crimes and violate laws whenever the president tells them that they should. The president has no greater power to authorize others to break the law than he does to break the law himself.

Greenwald also argues that the president — far from the idea of an imperial presidency with unchecked powers to bend or break laws as he sees fit, as advocated by many prominent members of the Bush administration — is bound by Article II of the Constitution to faithfully execute laws. Greenwald puts it succinctly, “lawbreaking is still illegal even if the president says it should be done.”

Indeed, the warrantless spying case perfectly illustrates how completely entrenched the idea among the powerful elites that certain members of this exclusive group, such as the president and members of his administration, are completely unbound by the rule of law and immune from the requisite justice that would be reasonably applied if the laws were properly executed. This is then extended to the private companies who cooperated in the law-breaking. In return for their silent complicity, the telecoms breaking the law were amply rewarded with multi-million dollar contracts generating huge revenues, and then afterwards were granted complete immunity from prosecution that their law-breaking would normally demand. This mentality is not the domain of one political party, but has become a bipartisan consensus as evidenced by the Democrat-controlled Congress’ eventual passage of the law that granted retroactive immunity to these law-breaking telecoms.

This idea is also shared by many outside the Capitol, with many of the more vocal calls for full-scale immunity originating from influential voices in the corporate media. Greenwald condemns the immunity law as “one of the most striking pieces of evidence that the royal Beltway court and its corporate partners placed themselves above and beyond the reach of the law even for the most blatant transgressions.”

It turns out that this bipartisan repudiation of the rule of law continues from one administration to the next regardless of party affiliation. In the chapter “Too Big to Jail,” Greenwald details the Obama’s administration’s sidestepping of the rule of law to shield the very financial elites responsible for the economic crisis. According to Greenwald, President Barack Obama went as far as elevating these same elites from Wall Street to positions of power that will enable them further control over the economy’s machinations. He argues that the appointment of Timothy Geithner as his Treasury secretary was precisely because of Geithner’s close ties with Wall Street. Because Obama “had been a major beneficiary of Wall Street’s largess,” there is an expectation that this friendliness will be return in kind.

Greenwald strongly condemns the Obama administration’s collusion with the very financial elites responsible for the wholesale destruction of this country’s economy, calling it a “rancid state of affairs” and “the hallmark of lawlessness and tyranny.” The resulting collaboration between the financial elites guilty of plundering the country and political elites we entrusted to protect us further entrenches the idea that the powerful — whether they belong in the private or public sectors — are above the law.

Yet Greenwald reserves his strongest polemics in the chapter devoted to the Obama’s administration refusal to prosecute the criminals responsible for the Bush torture regime. In that chapter, Greenwald details the aggressive prevention by the Obama administration of all efforts to investigate the war crimes committed by the previous administration. Obama went as far as pressuring the Department of Justice to not initiate criminal proceedings, which Greenwald contends amounts to transforming the Justice Department from an “independent law enforcement agency into a political arm of the White House.”

Citing the need to “look forward not backwards,” Obama echoed the very same spurious reasoning that Ford used to justify the pardoning of Nixon. This hostile unwillingness to enforce the law and prosecute crimes of the previous administration is self-serving; after all, the Obama administration’s refusal to prosecute the Bush torture regime is in itself a crime. Greenwald laments that the Obama administration’s resistance to any sort of accountability and lack of desire to prosecute wrongdoings ensure that the bipartisan “culture of impunity” will continue from one administration to the next.

“In the long run,” he says “immunity from legal accountability ensures criminality and corruption will continue.”

Wholly depressing in its inarguable citation of facts and recent history, Greenwald’s book is a breathless and damning indictment of the bipartisan effort to abrogate of the rule of law and eviscerate the very American principle of equality under the law. Greenwald convinces that the neutering of law to shield the elites from justice leads to the creation of a two-tiered justice system that protects the favored and punishes the oppressed.

Just as Thomas Paine once did, Greenwald rightly worries that a society that forsakes the rule of law will inexorably lead to tyranny. His argument for the rule of law and for it to be applied equally is an acknowledgement of the harsh reality we live in: that given the opportunities that immense power provides — from the unchecked accumulation of ill-gotten wealth to the complete abrogation of justice — only the objective, impartial, and equal enforcement of the supreme laws of this land will serve as effective chains against the natural tendency of men to tyranny.

Otherwise it would be that in America, law is not king.

Jayel Aheram is a student journalist, Iraq War and Marine veteran, internationally-published photographer, artist, and polymath. He is a blogger at Young Americans for Liberty, RedStateEclectic, and Copyfascism Watch, and a sometimes contributor to RT International.